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Opinion

AIDS Healthcare Foundation's Demand for Medical Records Endangers Us All

September 16, 2015

AIDS Healthcare Foundation (AHF) president Michael Weinstein's campaign against pre-exposure prophylaxis (PrEP) is fading, having been soundly rejected on all fronts. But he is escalating another crusade: challenging the medical privacy of actors in the adult film industry. But this article is not about Weinstein; it's about why responding to threats to everyone's right to privacy (yes, even his) is so critically important.

Recently, Weinstein's organization, which has an annual budget of one billion, subpoenaed three providers of HIV and STI testing in Los Angeles, demanding that they release records on specific clients from as far back as 2007. The clients whose records were subpoenaed are adult film actors. This is the latest in Weinstein's long history of attacks on the human rights and autonomy of people living with HIV (PLHIV) and those he perceives as vulnerable to HIV.


The Coburn/Weinstein Connection

Back in 2005, Weinstein paired up with Senator Tom Coburn, then the Senate's leading opponent of anonymous HIV testing, to require mandatory HIV testing for newborns. A colleague who discussed the matter with him said "he just didn't believe women could be trusted to do 'the right thing' without doctor's orders." In 2006, Coburn and Weinstein congratulated each other on forcing the adoption of name-based HIV registries in California, one of the last states in which human rights activists had fought tooth and nail to continue using unique identifiers, instead of names, to protect the privacy of people with HIV. Coburn is the Senator who introduced legislation requiring that all sex partners of people with HIV be mandatorily notified by the state of their HIV risk (because people obviously can't be trusted to decide when and how to disclose their status).

The public Coburn/Weinstein love-fest has also included Weinstein's testimony at 2006 Senate hearings chaired by Senator Coburn regarding the Ryan White CARE Act. After explaining that AHF's primary mission is medical treatment, Weinstein expressed concern that more CARE Act money was being spent on social services than medicine, and said that U.S. grantees could provide better care "if most of their money [was] not being spent on food, housing, transportation, case management, and everything else." In his view, local Ryan White Planning Councils cannot be trusted to know what their communities/states need to ensure comprehensive care for people living with HIV.


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Attacks on the Privacy of Sex Workers

Weinstein's initial attacks on the privacy of sex workers made headlines 2011, when he proudly spent $1.6 million of AHF's money trying to pass a "mandatory condoms in porn" ballot initiative in California. Despite the industry's unarguably low rates of sexually transmitted infections (STI) transmission, and its ingenious and effective system for ensuring that its actors are tested voluntarily and regularly, Weinstein decided that universal condom use should be enforced and "[t]he adult film industry needs to be shut or use condoms starting today."

The statewide initiative failed, but he succeeded in getting the County of Los Angeles to require condom use in all adult film scenes featuring vaginal or anal intercourse. 
 Weinstein invoked this law last month in serving those subpoenas, seeking to coerce the clinics to hand over private medical records. Given that this request violates the national Health Insurance Portability and Accountability Act (HIPAA), it is highly unlikely that the county will require the clinics to release this information. Nevertheless, his effort should ring loud warning bells for HIV and human rights advocates.

Violating the privacy of name-based HIV registries and medical records is central to the application of laws criminalizing HIV transmission and exposure. Traditionally, law enforcement has only been allowed to access data from such records under very narrow circumstances. But now, prosecutors and legislators in more and more states are requiring health officials and health care providers to hand over medical records to prove an accused persons' knowledge of her or his HIV status. Whether or not the accused actually put anyone at risk of acquiring HIV appears to be immaterial.


The Climate of HIV Criminalization

This past July, the state of Missouri sentenced two men, Michael Johnson and David Mangum, each to 30 years in prison for failing to disclose their HIV status to sex partners. Missouri also charged one man for lying about his HIV status on a social media hook-up app, even though there was never any physical contact between the two parties.

ProPublica has documented over 500 instances between 2003 and 2013 in which people living with HIV were convicted of or pleaded guilty to charges brought under HIV-specific laws. The Sero Project has documented more than 1,300 instances in which HIV-specific charges have been filed. Most of these cases rely on evidence showing that the accused knew her or his HIV status at the time sex took place. They typically disregard the science of HIV transmission and whether or not a risk of transmission was ever present during the sexual encounter.

To get the evidence that the accused knew that she or he was HIV positive at the time exposure occurred, prosecutors and law enforcement go to public health officials to access the state's HIV reported-names registry, and to the records of individual physicians and clinics. According to ProPublica, judges and prosecutors in Idaho, Missouri, Indiana, Michigan, Iowa and other states "have used subpoenas and warrants to force health officials to hand over these forms along with other medical records, such as test results. These are used as evidence against patients charged with violating viral exposure laws. County prosecutors in Indiana, for example, have served at least 20 such subpoenas to the state health department since 2010."

In this atmosphere, Weinstein's decision to push the boundaries further by demanding, as a private citizen, that HIV testing clinics release private records is appalling. It is also a warning -- especially in light of the fact that people living with HIV, like people working in the sex industry, are increasing vulnerable to harassment, arrest, prosecution and abusive sentencing.

The Free Speech Coalition in California is currently defending the clinics subpoenaed by Weinstein in their refusal to surrender their confidential medical records. HIV and human rights activists everywhere should join them in defending both actors and targeted clinics -- loudly and publicly. Like liberty, the price of privacy is constant vigilance. And if the rights of any of us are held as dispensable, then the rights of all of us will become dispensable.

After three decades of working in HIV, Anna Forbes is now a consultant focused on women and HIV. Her clients range from mainstream global NGOs and research institutions to activist groups (her home turf) including GNP+, SERO, SisterLove and the Positive Women's Network, USA. She can be reached at annaforbes@earthlink.net.


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